Exhbit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, is made and entered into effective as of the 1st
day of May, 2002, by and between THE NETPLEX GROUP, INC. a New York corporation
(the "Company") and Xxxxx X. Xxxxx (the "Employee").
RECITALS
A. The Company desires to retain Employee to provide the services hereinafter
set forth.
B. The Employee is willing to provide such services to the Company on the
terms and conditions hereinafter set forth.
AGREEMENT
In consideration of the promises and the terms and conditions set forth in
this Agreement, and for other consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
1. Employment and Term. The Company agrees to employ the Employee and the
Employee agrees to work for the Company, effective as of the date hereof,
subject to the term and conditions below. Unless sooner terminated by either
party pursuant to Sections 5, 6, 7 or 8 below, this Agreement shall be for a
term of twelve (12) months after the date hereof, provided, that the term of
this Agreement shall automatically renew for successive twelve (12) month
periods unless one party gives the other party at least sixty (60) days written
notice of non-renewal prior to the applicable expiration date.
2. Compensation; Benefits. Subject to the terms and conditions of this
Agreement, the Company shall pay to the Employee a base salary at the rate
determined by the Compensation Committee of the Company's Board of Directors,
payable in accordance with the Company's regular payroll policies. In addition
to this base salary, the Employee shall be entitled to the benefits and bonuses
determined by the Compensation Committee of the Company's Board of Directors
subject to the terms and conditions described therein. In addition, the Employee
shall be entitled to receive such other benefits including, but not limited to,
holidays and sick leave, business expense reimbursement, automobile allowance,
life, health and disability insurance as the Company generally provides to its
employees holding similar positions as that of the Employee. All benefits
provided hereunder shall be subject to the terms of the applicable plans and
programs, as they may be modified or terminated for employees generally in the
Company's discretion from time-to-time.
3. Title; Duties. The Employee shall be employed as Executive Vice
President and Chief Financial Officer of the Netplex Group, Inc. The Employee
shall diligently and conscientiously devote his full time and attention and his
best efforts to loyally and professionally discharge the duties assigned to him
by the Company. The Employee shall perform such duties as may be assigned to him
from time to time by the Company. The Employee will report directly to the
Company's CEO. In performing his duties, the Employee will comply with all
applicable laws and all policies and procedures of the Company, as they may be
modified in the Company's discretion from time-to-time.
4. Right to Contract; Conflict of Interest. The Employee hereby represents
and warrants to the Company that (i) he has full right and authority to enter
into this Agreement and to
perform his obligations hereunder, and (ii) the execution and delivery of this
Agreement by the Employee and the performance of the Employee's obligations
hereunder will not conflict with or breach any agreement, order or decree to
which the Employee is a party or by which he is bound. During the term of this
Agreement, the Employee shall not directly or indirectly consult, advise, be
retained or employed by, or in any manner perform any service with or to any
other business or entity in any line of business, regardless of whether such
line of business is competitive with the Company's business, without first
obtaining consent in writing from the Company.
5. Termination by the Company.
(a) The Company shall have the right to terminate this Agreement with
or without cause at any time during the term of this Agreement by giving written
notice to the Employee. If the termination is with cause, the termination shall
become effective on the date specified in the notice. If the termination is
without cause, the termination date shall be a date at least sixty (60) days
following the date of the notice of termination itself, provided that the
Company may in its discretion at any time relieve the Employee of his duties and
provide him with pay in lieu of notice. In the event that this Agreement is
terminated by the Company without cause, the Company shall pay to the Employee:
(i) compensation equal to continuation of the Employee's base salary for one (1)
year; (ii) a lump sum payment of 100% of the Employee's greatest annual
incentive compensation paid in the previous two years; (iii) payment of 100% of
health, dental and disability benefits for the subsequent one year period and
(iv) all amounts of the employee's salary deferral under the Company's Deferred
Compensation Plan plus accrued interest at the current federal interest rate
guidelines.
(b) For purposes of this Section 5, "cause" shall mean (i) a material
breach by the Employee of any covenant or condition hereunder or a material
failure of performance by the Employee under this Agreement; (ii) abandonment by
the Employee of his duties hereunder; (iii) the commission by the Employee of
any act or omission constituting gross negligence, dishonesty, fraud, immoral or
disreputable conduct which is, or in the reasonable opinion of the Company's
Board of Directors, is likely to be, harmful to the Company or its reputation;
(iv) conviction of, or a plea or nolo contenders by, the Employee of a violation
of any federal, state or local law, rule regulation or ordinance; or (v)
material violation by the Employee of the Company's material policies as set
forth in the Company's personnel handbook, if one has been adopted, or announced
by Company management from time to time, and, with respect to subparts i, ii,
iii or v, which violation remains uncured to the Company's satisfaction thirty
(30) days after written notice to the Employee by the Company regarding such
violation has been provided.
6. Termination by Death or Disability of the Employee.
(a) In the event of the Employee's death during the term of this
Agreement, all obligations of the parties hereunder shall terminate immediately,
and the Company shall pay to the Employee's legal representatives the base
salary due the Employee through the day on which his death shall have occurred.
(b) If in the opinion of a physician selected by the Company and
approved by the Employee, which approval shall not unreasonably be withheld, the
Employee is unable to perform his duties hereunder due to mental, physical or
other disability for a period of 90 consecutive business days, as determined by
the Company, or for 90 business days in any period of 12 consecutive months,
this Agreement may be terminated by the Company, at its option, by written
notice to the Employee, effective on the termination date specified in such
notice, provided such termination date shall not be a
date prior to the date of the notice of termination itself In this case, the
Company will pay the Employee the base salary due him through the day on which
such termination is effective.
7. Termination by the Employee.
(a) The Employee may terminate this Agreement at any time, with or
without cause, by giving sixty (60) days written notice to the Company. Any such
termination, if without cause, shall become effective on the date specified in
such notice, provided that the Company may elect to have such termination become
effective on a date after, but not more than 14 days after, the date of the
notice. If such termination is with cause, it shall become effective on the date
60 days after the date of such notice, but the Company has failed to cure the
cause specified in the notice. In the event that this Agreement is terminated by
the Employee with cause, the Employee shall be entitled to the base salary due
him through the day on which such termination becomes effective. In the event
that this Agreement is terminated by the Employee without cause, the Company
shall pay to the Employee: (i) compensation equal to continuation of the
Employee's base salary for one (1) year; (ii) a lump sum payment of 100% of the
Employee's greatest annual incentive compensation paid in the previous two
years; (iii) payment of 100% of health, dental and disability benefits for the
subsequent one year period and (iv) all amounts of the employee's salary
deferral under the Company's Deferred Compensation Plan plus accrued interest at
the current federal interest rate guidelines.
(b) For purposes of this Section 7, "cause" shall mean (i) a material
failure by the Company to perform its obligations under this Agreement, (ii) a
material reduction in the Employee's duties or responsibilities hereunder not
consented to by Employee or (iii) a relocation of more than fifty (50) miles
from the Company's principal executive offices not consented to by Employee.
8. Change of Control of the Company. For purposes of this Section 8, a
Change of Control shall not include a public stock offering by the Company or
any subsidiary of the Company, but shall mean only any of the following:
(a) the merger or consolidation of the Company with or into another
unaffiliated entity, or the merger of another unaffiliated entity into the
Company or any subsidiary thereof with the effect that immediately after such
transaction the stockholders of the Company immediately prior to such
transaction hold less than fifty percent (50%) of the total voting power of all
securities generally entitled to vote in the election of directors, managers or
trustees of the entity surviving such merger or consolidation;
(b) the sale, lease or other transfer of all or substantially all of
the Company's assets to an unaffiliated person or group (as such term is used in
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) or the sale
or transfer of more than fifty one percent (51 %) of the Company's then
outstanding voting stock (other than in a restructuring transaction which
results in the continuation of the Company's business by an affiliated entity)
to such persons or group; or
(c) the adoption by the stockholders of the Company of a plan relating
to the liquidation or dissolution of the Company.
(d) In the event of a Change of Control (as defined above) of the
Company, then following the consummation of such Change of Control, all
unexercisable Restricted Stock and Incentive and Non-Qualified Stock Options
granted to the Employee prior to such date will be come
immediately exercisable in full and remain exercisable for a period of 24 months
following the consumation of such Change of Control.
(e) In the event of both (i) a Change of Control (as defined above) of
the Company and (ii) the termination of this Agreement by the Company (or its
successor) without cause within four (4) months following the consummation of
such Change of Control, the Company (or its successor) shall pay to the Employee
in a gross amount such that the net payments retained by the Employee after
payment of any tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended, with respect to such payment shall equal continuation of the
Employee's base salary for twelve (12) months plus a lump sum payment of 100% of
the Employee's minimum incentive compensation payable hereunder.
(f) In the event of a Change of Control (as defined above) of the
Company, the Employee may terminate this Agreement within thirty (30) days
following the consummation of such Change of Control by giving written notice to
the Company, with an effective date of such termination to be not later than
sixty (60) days following the consummation of such Change of Control. If the
Employee elects to terminate this Agreement pursuant to Section 8(e), the
Company (or its successor) shall pay to the Employee in a gross amount such that
the net payments retained by the Employee after payment of any tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, with respect to
such payment shall equal continuation of the Employee's base salary for six (6)
months plus a lump sum payment of 100% of the Employee's minimum incentive
compensation payable hereunder.
9. Non-Solicitation.
(a) The Employee agrees that, during his employment hereunder, and for
a period of three (3) years after the termination of his employment by the
Company for cause pursuant to Section 5, he will not on his own behalf or as a
partner, officer, director, employee, agent, or consultant of any other person
or entity or in any other capacity, directly or indirectly solicit or induce (or
attempt to solicit or induce) any of the Company's Customers, or Employees, not
to conduct business with the Company, or to stop conducting business with the
Company, to conduct business with or contract with any other person or entity,
or to leave their employment with the Company or consider employment as an
employee or contractor with any other person or entity. The Parties agree and
stipulate that as used herein "Customer" means all persons, firms or entities
that have either sought or purchased the Company's goods or services, have
contacted the Company for the purpose of seeking or purchasing the Company's
goods or services, or have been contacted or strategically targeted by the
Company for the purpose of selling its goods and services during the Employee's
employment. The Customers covered by this Agreement shall include any Customer
or potential Customer of the Company at any time during the Employee's
employment. The parties further agree that the term "Employees" as used herein
shall mean any persons who then are, or were at any time in the preceding six
(6) months period, or at any time during the Employee's employment with the
Company, employed by the Company.
(b) The Employee further acknowledges that this Section 9 is an
independent covenant within this Agreement, and that this covenant shall survive
any termination of Agreement and shall be treated as an independent covenant for
the purposes of enforcement. With respect to this covenant, the Employee hereby
acknowledges receipt of Ten Dollars ($10.00) and other good and valuable
consideration stated herein including without limitation the consideration of
his continued employment by the Company.
(c) The Employee shall, during the term of this Agreement and
thereafter, notify any prospective employer of the terms and conditions of this
Agreement regarding non-solicitation, non-competition, confidentiality and
non-disclosure.
10. Non-Competition. The Employee agrees that during his employment
hereunder, and for a period of one (1) year after the termination of his
employment by the Company for cause pursuant to Section 5, he will not, on his
own behalf or as a partner, officer, director, employee, agent, or consultant of
any other person or entity, directly or indirectly, engage or attempt to engage
in the business of providing goods or services which are the same as or similar
to the goods or services of Netplex Group, Inc.'s Contractors Resources
subsidiary anywhere within the United States. The Employee acknowledges that the
Company operates on a nationwide basis and that he has nationwide
responsibilities. Thus, he agrees that the restrictions in this Section 10 are
fair and reasonable, and in the event of any litigation to enforce this Section
10, he shall not claim that any portion of it is unreasonable or unenforceable.
11. Confidentiality and Non-Disclosure.
(a) The Employee shall hold in strict confidence and shall not, either
during the term of this Agreement or after the termination hereof, use or
disclose, directly or indirectly, to any third party, person, firm, corporation
or other entity, irrespective of whether such person or entity is a competitor
of the Company or is engaged in a business similar to that of the Company, any
trade secrets or other proprietary or Confidential Information of the Company or
any subsidiary or affiliate of the Company obtained by the Employee from or
through his employment hereunder. The Employee hereby acknowledges and agrees
that all confidential and proprietary information referred to in this Section 11
shall be deemed trade secrets of the Company and of its subsidiaries and
affiliates, and that the Employee shall take such steps, undertake such actions
and refrain from taking such other actions, as mandated by the provisions hereof
and by the provisions of the Virginia Uniform Trade Secret Act. Employee further
acknowledges that the Company's products and titles consist of copyrighted
material, and Employee shall exercise his best efforts to prevent the use of
such copyrighted material by any person or entity which has not prior thereto
been authorized to use such information by the Company.
(b) "Confidential and/or proprietary information and documents" as
used in this Section includes, but is not limited to, trade secrets, inventions,
ideas, processes, formulas, source and object codes, data, programs, other works
of authorship, improvements, discoveries, drawings, contracts, methods of
operation, developments, designs and techniques, new products, marketing and
selling, customer identities, customer lists, customer contacts, customer
goodwill, business plans, budgets and unpublished financial statements,
licenses, prices and costs, suppliers and customers, information regarding the
skills and compensation of other employees of the Company, and any other trade
secrets not specifically mentioned herein which are not publicly known or are
only publicly known due to a breach of an obligation not to disclose them.
(c) The Employee further hereby agrees and acknowledges that any
disclosure of any confidential or proprietary information prohibited herein, or
any breach of the provisions of Sections 4, 9 or 11 of this Agreement, may
result in irreparable injury, and damage to the Company which will not be
adequately compensable in monetary damages, that the Company will have no
adequate remedy at law therefore, and that the Company may obtain such
preliminary, temporary or permanent mandatory or restraining injunctions, orders
or decrees as may be necessary to protect the company against, or an account of,
any breach by the Employee of the provisions contained in Sections 4, 9, or 11.
(d) The Employee further agrees that, upon termination of this
Agreement, whether voluntary or involuntary or with or without cause, the
Employee shall notify any new employer, partner, associate or any other firm or
corporation with whom the Employee shall become associated in any capacity
whatsoever of the provisions of this Section and that the Company may give such
notice to such firm, corporation or other person.
12. Assignment and Disclosure of Inventions.
(a) From and after the date the Employee first became employed with
the Company, the Employee hereby agrees to promptly disclose in confidence to
the Company all inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs,
databases, mask works, and trade secrets ("Inventions"), whether or not
patentable, copyrightable or protectible as trade secrets, that are made or
conceived or first reduced to practice or created by the Employee, either alone
or jointly with others, during the period of the Employee's employment, whether
or not in the course of the Employee's employment.
(b) The Employee hereby acknowledges that copyrightable works prepared
by the Employee within the scope of the Employee's employment are "works for
hire" under the Copyright Act and that the Company will be considered the author
thereof. The Employee hereby agrees that all Inventions that (a) are developed
using equipment, supplies, facilities or trade secrets of the Company, (b)
result from work performed by the Employee for the Company, or (c) relate to the
Company's business or current or anticipated research and development, will be
the sole and exclusive property of the Company and are hereby assigned by the
Employee to the Company.
13. Severability. The Company and the Employee recognize that the laws and
public policies of the Commonwealth of Virginia are subject to varying
interpretations and change. It is the intention of the Company and of the
Employee that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies of the Commonwealth of
Virginia, but that the unenforceability (to the modification to conform to such
laws or public policies) of any provision or provisions hereof shall not render
unenforceable, or impair, the remainder of this Agreement. Accordingly, if any
provisions of this Agreement shall be determined to be invalid or unenforceable,
either in whole or in part, this Agreement shall be deemed amended to delete or
modify, as necessary, the offending provision or provisions and to alter the
balance of this Agreement in order to render it valid and enforceable.
Furthermore, the Court or arbitrator shall modify any invalid provision to make
it enforceable to the maximum extent permitted by law.
14. Indemnification. The Company shall defend and hold the Executive
harmless to the fullest extent permitted by applicable law and the Company
By-Laws and Certificate of Incorporation in connection with any claim, action,
suit, investigation or proceeding arising out of or relating to performance by
the Executive of services for, or action of the Executive as an employee of the
Company or any parent, subsidiary or affiliate of the Company, or of any other
person or enterprise at the Company's request, except in situations where the
Employee engaged in fraud, willful misconduct or unlawful or criminal conduct or
where the Employee and the Company are adverse parties in the legal proceeding.
Expenses incurred by the Executive in defending a claim, action, suit or
investigation or proceeding covered hereby shall be paid by the Company in
advance of the final disposition thereof upon the receipt by the Company of any
undertaking by or on behalf of the Executive to repay such amount unless it
shall ultimately be determined that he is not entitled to be indemnified
hereunder;
provided, however, that this Section 14 shall not apply to a non-derivative
action commenced by the Company against the Executive.
15. Assignment. Neither the rights nor obligations under this Agreement may
be assigned by either party, in whole or in part, by operation of law or
otherwise, except that (1) the Agreement shall be binding upon and inure to the
benefit of any successor of the Company and its subsidiaries and affiliates,
whether by merger, reorganization or otherwise, or any purchaser of all or
substantially all of the assets of the Company and the Company may assign its
rights and obligations hereunder to such successor or purchaser; and (2) the
Company may assign the rights and obligations under this Agreement with Employee
to Netplex Group Inc.'s Contractors Resources subsidiary at such time as
Employee ceases providing employment services to Netplex Group Inc. as Senior
Vice President, Chief Accounting Officer.
16. Notices. Any notice expressly provided for under this Agreement shall
be in writing, shall be given either manually or by mail and shall be deemed
sufficiently given when actually received by the party to be notified or when
mailed, if mailed by certified or registered mail, postage prepaid, addressed to
such party at their addresses as set forth below. Either party may, by notice to
the other party, given in the manner provided for herein, change their address
for receiving such notices.
(a) If to the Company, to
NETPLEX Group, Inc.
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attn: Chairman of the Compensation Committee
(b) If to the Employee, to
Xxxxx X. Xxxxx
00000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
17. Governing Law. This Agreement shall be executed, construed and
performed in accordance with the laws of the Commonwealth of Virginia without
reference to conflict of law principles.
18. Headings. The section headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
19. Entire Agreement; Amendments. This Agreement constitutes and embodies
the entire agreement between the parties in connection with the subject matter
hereof and supersedes all prior and contemporaneous agreements and
understandings in connection with such subject matter. No covenant or condition
not expressed in this Agreement Shall affect or be effective to interpret,
change or restrict this Agreement. In the event of a conflict or inconsistency
between the terms of this Agreement and the Company's policies regarding
employees, the terms of this Agreement shall supersede the conflicting or
inconsistent Company policies. No change, termination or attempted waiver of any
of the provisions of this Agreement shall be binding unless in writing signed by
the
Employee and on behalf of the Company by an officer thereunto duly authorized by
the Company's Board of Directors. No modification, waiver, termination,
rescission, discharge or cancellation of this Agreement shall affect the right
of any party to enforce any other provision or to exercise any right or remedy
in the event of any other default.
20. Arbitration. Any controversy or claim arising out of or relating to
this Agreement or Employee's employment with the Company, except for claims of
violation of Sections 9, 10 or 11 hereof, which may be enforced by the Company
in a court of competent jurisdiction shall be settled exclusively by binding
arbitration before a single arbitrator in or about the proximity of the Company
headquarters in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect. The provisions hereof shall be a
complete bar and defense to any suit, action or proceeding instituted in any
federal, state or local court or before any administrative tribunal with respect
to any matter which is arbitrable as herein set forth. Nothing herein contained
shall be deemed to give any arbitrator any authority, power, or right to alter,
change, amend, modify, add to, or subtract from any provisions of this
Agreement. The decision of the arbitrator shall be final and conclusive.
Judgment on an award rendered by the arbitrator may be entered in any court of
competent jurisdiction. In the event of any litigation or arbitration to enforce
any provision of this Agreement, the prevailing party may be awarded his or its
reasonable attorneys' fees and costs.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY:
THE NETPLEX GROUP, INC.
By:
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Xxxxx Xxxxx
Chairman, Compensation Committee
Date: May 7, 2002
EMPLOYEE:
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Xxxxx X. Xxxxx
Date: May 7, 2002
